Stephen Franks

In August 2022, Local Government New Zealand (“LGNZ”) released its 2022 template document “The guide to LGNZ standing orders: He aratohu i te anga tikanga whakahaere hui a LGNZ” (“LGNZ guide”). This document is meant to guide councils on updating their standing orders, which LGNZ encourages them to do following a local body election.

Franks Ogilvie was asked whether some assertions in the LGNZ guide properly reflect the law, namely:

• the preamble inclusion on “Local government obligations under Te Tiriti o Waitangi”;
• the claim that it is “incumbent on local authorities” to recognise that “iwi and hapū have a mandate” derived from “their role as the indigenous governors of the land” that is “quite different from the ‘stakeholder status’ of other organisations kaunihera works with” and “that would exist even if it wasn’t enshrined in TeTiriti o Waitangi”.

We were asked about the potential for Standing Orders and Codes of Conduct in line with LGNZ recommendations to wrongly restrict councillors’ freedom of speech and representation of constituent concerns and to subordinate them to majority suppression. We will advise separately on those concerns.  

Summary of advice

The LGNZ guide is misleading about council obligations to Maori as such. Some of its statements about the Treaty are at least careless and probably mischievous. LGNZ contrives to leave users of the guide with a false impression of compelling duties to grant appointments and influence privileges to un-elected Maori nominees. They appear intended to prevail over long-standing procedures to protect fairness and equality of treatment by local government.

The LGNZ guide fails to explain that its claims about an alleged ‘mandate’ of mana whenua as “indigenous governors of the land” have no statutory basis.

The LGNZ guide omits to remind councils of their obligations to uphold the New Zealand Bill of Rights Act 1990 and in particular, its protections against race discrimination. The LGNZ guide ignores the implications of New Zealand’s signing of the Convention for the Elimination of all forms of Racial Discrimination. The guide does not mention the CERD ban on discrimination lasting longer than needed to remedy a rights deficiency.

The LGNZ guide does not alert councils to the risk of creating expectations among some Maori of special political influence and entitlement that it may be unlawful for councils to maintain. It does not warn of the cost consequences of disappointing legitimate expectations when open ended arrangements are necessarily ended.

In short, the recommendations seek to embed specific privileges for certain Maori. That may unlawfully undermine democratic decision-making and accountability. The recommendations are inconsistent with rule of law principles and urge some actions which could breach the over-riding purpose provisions of the Local Government Act 2002 (“the Act”). Some such measures may be lawful only if they counter-act rights disadvantage that has been shown to be suffered by those to be privileged, and which is continuing. The LGNZ guide offers no guidance on measures to limit the possibility of abuse of privilege by those who gain special status from the recommendations, or measures to ensure that the privilege benefits poor or politically powerless Maori, rather than already powerful Maori.  

On the other hand, the Act does require councils to give special consideration to Maori interests. Councils must not ignore that. Other legislation, including the Resource Management Act and the Marine and Coastal Areas Act go further and create rights for mana whenua to exercise substantial power through or alongside councils that are not available to other citizens. This opinion does not address those because the arrangements and procedures are clear in that legislation, and they do not need to be reflected in standing orders. The LGNZ guide appears not to be referring to them in its advice and recommendations.

The Act does not make councils liable to Maori under the Treaty. Nor does it impose Treaty principles obligations on councils. The Act’s Treaty clause (s 4) says the relevant provisions in Parts 2 and 6 of the Act are to satisfy an obligation on the Crown to “maintain and improve opportunities for Maori to contribute to local government decision-making processes”.

Those Act requirements on councils are abstract. It is fair to describe the provisions as reminders to councils, with particular reference to Maori, of council responsibilities to engage with groups, communities and citizens in ways that protect and enhance their opportunities to participate in democratic local decision-making. The specific statutory references to Maori have a ritual character. They require councils to turn their minds to ensuring that Maori do not miss out on the opportunities to contribute and participate and to influence, that are available to other citizens. That characterisation is underscored by express provisions which say that the special arrangement for Maori must not derogate from the primary role and duty of local authorities – to ensure that local authority accountability and decision-making are democratic.

Local Government obligations to Maori

Relevant Content of the LGNZ Guide

The LGNZ guide states that standing orders“ have an important role to play in assisting kaunihera to meet their obligations under TeTiriti o Waitangi”, obligations which are “set in legislation or reflect respectful practice”.

These alleged obligations are set out at the beginning of the guide. It refers to the Local Government Act 2002 and other acts of Parliament, as well as to Te Tiriti o Waitangi. There is generally no further detail given about the source of these obligations.

Broadly, the guide states that councils have obligations to:

• acknowledge the “mandate of mana whenua as the traditional governors of the land”. It does not confine it to council land or Maori land; and
• enable the participation of Maori in council decision-making processes.

The guide states that the “mandate “of hapū and iwi is “quite different” from the position of other stakeholders, and that it is “incumbent on local authorities” to find ways of recognising this mandate. Examples given include joint memoranda or charters of understanding developed with hapū or iwi, to clarify expectations and how engagement should occur. Practical examples include co-development of policy papers, specific processes for ensuring mana whenua concerns are listed on council agendas and making space for mana whenua representatives to sit as advisors to council during meetings.

The LGNZ guide goes on to state that “Standing orders are a mechanism… for promoting active citizenship” and that this includes enabling the participation of Maori citizens. LGNZ urge that standing orders promote participation in council discussions, and that standing orders be used to proactively facilitate Maori participation. This could include using tikanga and mātauranga Maori in council meetings, such as by including mihi whakatau and karakia on council agendas.

The LGNZ guide does not clearly distinguish between iwi (as mana whenua or as successors to the signatories of the treaty) and Maori as members of a race (the term used in the definition in the Treaty of Waitangi Act 1975). The distinction may drive different legal consequences, particularly for local government. The words (and the traditional view) of the Treaty were focused on its assurances of property rights and legal equality of citizens under the British Crown and British law. They should support defences by mana whenua against council actions that diminish their property rights assured by the Treaty.

Accordingly it is reasonably arguable that the Treaty could oblige councils to refrain from infringing property rights, giving Maori more protections against council intrusions on their property rights than to non-Maori property owners. The outcome may depend on whether older interpretations of Article 2 as an assurance of Crown recognition and defence of property rights for all New Zealanders at the time, have been superseded by more recent claims that rangatiratanga is a source of Maori political rights. As explained below, we consider that the later claims are wrong. Applying what is in our opinion the correct interpretation, iwi rights to particular protection against council derogation from their property rights should also cover collectively owned fishing and other interests including those re-established or vested under Treaty settlements.

As Dame Anne Salmond has recently emphasized, assertions of special political rights and status for Maori have dubious legal and historical foundation. However we think it would not be fair to criticise LGNZ for failing to make the distinction clear, between rights of mana whenua, in relation to their lands and other property, and some special status for Maori under the Act. The Local Government Act refers frequently to Maori as such, without confining any intended advantages to mana whenua. Accordingly it is excusable for LGNZ to not highlight the distinction.

None of the LGNZ guide, the template standing orders, or the Act say why Maori citizens might need improvement of their opportunities to participate in local government decision-making. None of them propose any requirement to establish a deficiency in Maori participation or rights to participate as a pre-condition to the exercise of powers to make special provision for Maori in council decision-making. The significance of this is discussed below in relation to the NZ Bill of Rights Act 1990. We are not aware of any evidence that Maori, as such, are now less able than others to participate in “active citizenship” in the words of LGNZ, or why they might need enabling.

LGNZ are not clear whether such measures must be condensed into specific assurances and enacted into codes of conduct and/or standing orders. There do not appear to be any specific standing orders recommended by LGNZ which give effect to the “legal obligations” mentioned, though there is reference to development of joint memoranda or charters of understanding. It may be that LGNZ expects these documents to be developed and formalised separately from, but alongside, council standing orders and codes of conduct.

What does the law require?

The starting point for our analysis is that Treaty obligations are owed by the Crown, not councils. The orthodox view is that councils are not part of the Crown; they are independent legal entities, and are not generally subject to ministerial or other forms of Crown control. They are the embodiment of citizen self-government at local level, not delegates or local agents of the Crown. The orthodox view that follows from this is that councils are not directly bound by the Treaty.

The Act, in s 4, does impose Treaty-related obligations on councils. They are expressed as being intended to facilitate Maori participation in local authority decision-making processes. But that is not because the Act gives councils Treaty obligations. It is simply to help the Crown to satisfy its obligations ‘to take appropriate account of the principles of the Treaty” (in certain specified ways).

This type of section, now called a “Treaty clause” is routinely found in Bills before Parliament. The 2002 form in the Act expressly identifies the responsibility as the Crown’s to clearly distinguish the Crown from councils. They are a preamble to and justification for the specific obligations to Maori imposed on local authorities by Parts 2 and 6 of the Act. Those obligations are explored later in this advice.

Treaty clauses demand attention to “Treaty principles” rather than the Treaty itself. Until recently they avoided words that signified obligation. They were usually expressed as requirements to take the principles into account. This distinction between the Treaty and its so-called principles was made in Treaty of Waitangi Act 1975, and carried into s 9 of the State Owned Enterprises Act 1986. In 1987 in the seminal Lands case the Court had to make sense of the phrase. They were obliged to treat legislation as expressing an intention of Parliament. Accordingly they had to decide what the principles were. It was not open to the Court to decide that Parliament might have seen them as political flannel, fine sounding but intended to have little practical effect.

In the Lands case the issue was whether the Crown could transfer land which was subject to Treaty settlement claims to the then newly formed state-owned enterprises. The State-Owned Enterprises Act 1986 contained (and still contains) a section prohibiting the Crown from acting inconsistently with the “principles of the Treaty of Waitangi”. This concept of “Treaty principles” led the Court of Appeal to emphasise that it was the “spirit” of the Treaty, not its literal text that mattered. Put another way, the literal text of the Treaty is not a source of legal obligation.

The Court in the Lands case went on to create the “Treaty principles”. The three most relevant principles are:

(1) the duty of “active protection” — the Crown must take all reasonably practicable steps to ensure that Maori are able to enjoy the rights granted to them under the Treaty;

(2) the duty to act “in the utmost good faith” — the Crown must act reasonably and fairly in good faith in its dealing with Maori (and vice-versa for Maori when dealing with the Crown); and

(3) that the Crown has the right to govern.

The third principle, the so-called “right to govern” has not been much discussed since Lands. Significantly Cooke P said in the judgment:

A duty “to consult”… In any detailed or unqualified sense is elusive and unworkable. Exactly who should be consulted…would be difficult or impossible to lay down. Moreover, wide-ranging consultations could hold up the processes of Government in a way contrary to the principles of the Treaty.

For completeness, until very recently the law was that a “Treaty clause” delineated and confined the extent of the Treaty’s relevance to an Act. Section 4 of the Act is a good example: the section states that “in order to” meet the Crown’s obligations to take account of Treaty principles, Parts 2 and 6 of the Act contain certain provisions. However, the Supreme Court recently rejected an argument that the Treaty was only relevant as specified in a section of this type. The Supreme Court is on an activist spree, holding that tikanga and the Treaty give them more power to find or invent new rules than is consistent with the historical restraint of our judiciary. So s 4 of the Act may no longer limit the ability to argue that the Treaty can require compliance with obligations not expressly set out in the Act, despite the words of s 4 being inconsistent with the permissive interpretation.

The Act’s specific obligations

The Act’s Treaty obligations in Parts 2 and 6 are referred to in the guide as providing “some help”.

The provisions are abstract. For example, s14(1)(d) requires councils to “provide opportunities for Maori to contribute” to decision-making. That provision rests in a long list, which include requirements that a council make itself aware of and have regard to the views of all of its communities. Subsection 14(2) directs a council confronting conflict among the principles in s 14 to “resolve the conflict in accordance with the principle in subs 14(1)(a)(i)” which reads “conduct its business in an open, transparent, and democratically accountable manner” (emphasis ours). In other words, democratic accountability trumps the other principles in that list.

Many of the arrangements we have seen for increasing Maori participation in local authority decision-making go beyond what was envisaged by ‘contribution’ in s 14(1) (d). In our opinion a council that allows its decision-making to be subordinated in practical effect to the wishes or advice or the votes of unelected people who cannot be removed by the voters, is failing to uphold the primacy given to democratic accountability in subs 14(1)(a)(i). It may also be failing to fulfil the purpose set out in s10(1)(a) being “to enable democratic local decision-making and action, by and on behalf of, communities”.

Part 4 of the Act is not mentioned in s 4 (the Treaty clause). However Part 4 contains an obligation to include in a local governance statement, information on “policies for liaising with, and memoranda or agreements with, Maori” (s40(1)(i)). Strictly that seems to require information on the policies, memoranda and agreements only if they exist, presumably in satisfaction of the pertinent sections in Parts 2 and 6. It is not a separate obligation to have such policies or memoranda or agreements. However, we think it is reasonable for councils to take account of the provision as statutory blessing or encouragement of such arrangements.

Though they may assume a necessity for the measures, none of the Act provisions examined above, to advantage Maori, expressly discharge councils from considering whether the arrangements are warranted, or whether they can be at least structured to avoid interfering with the over-riding requirements that decision-making be “democratic”. We think there are strong arguments that the provisions should be read as subject to the ordinary imputation of conditions to protect against racial discrimination. Accordingly if councils determine that advantage must be given to Maori though it is necessarily discriminatory or derogates from the democratic nature of decision-making, councils should be focused on minimising those effects.

On ordinary principles of statutory interpretation (applying rule of law equality principles and human rights law) arrangements that depart from equality before the law would require careful justification. For example, councils should ascertain particular disabilities or obstacles that need to be overcome, and target the measures strictly to remedying the disadvantages established. LGNZ have not suggested that councils first find out if Maori are impeded from contributing in the same ways as their fellow non-Maori citizens.

If an approach consistent with human rights law is adopted, a similar caution should govern the implementation of s 81.[2] It requires councils to establish and maintain processes to provide opportunities for Maori, “consider ways” councils can assist in developing Maori capacity to contribute to council decision making and provide “relevant information” to Maori about these matters.

It is arguable that Parliament expected s 81 to be unexceptional. Subsection 81(2) expressly subordinates s 81 to s 11, which in turn refers back to the governing purpose provision, s 10. Section 10 says that the purpose of local government is to enable democratic decision-making and action by, and on behalf of, communities, as well as to promote their well-being. Further, there is no general difference between consultation obligations for Maori and non–Maori under the Act. Section 82(1) sets out well‑known and comprehensive principles of consultation; but s 82(2) simply requires that councils have processes for ensuring Maori are consulted in accordance with those general principles.

New Zealand Bill of Rights Requirements

Councils may be at risk of breaching the NZ Bill of Rights Act 1990 (“BORA”) if they follow standing orders based on the LGNZ recommendations but outside their lawful authority. Councils must comply with the Bill of Rights; and where a statutory provision is ambiguous, a reading that complies with the Bill of Rights must be preferred.

Section 19(1) of BORA prohibits discrimination on certain grounds, relevantly ethnic or national origins.

Discrimination is usually tested by: a)choosing a group (A) to compare with the group allegedly discriminated against (B); b) checking whether there is differentiation between groups A and B which materially disadvantages group B; and c) analysing whether that differentiation is because of a prohibited ground of discrimination.Plainly the comparison here is between Maori and the rest ofthe community, and plainly ethnicity is the basis of the distinction drawn —“a)” and “c)” are satisfied.

Do the measures proposed amount to a material disadvantage? That depends on the particular measure. For example, one measure proposed by LGNZ is providing workshops to increase voter engagement and turnout among Maori. If those workshops were not offered to non-Maori, there is clearly differentiation, but it seems at least arguable that — given ultimately both groups still vote on the same basis — there is not material disadvantage. In contrast, offering Maori the opportunity to co-write policy papers does constitute material disadvantage to those not similarly favoured. Policy papers inform and shape the decisions reached by councils. It would be ludicrous to argue that such privileged access and influence was not material. The expense and time people put into trying to find out who in a council organisation has influence on a decision affecting them, and then trying to engage with them, or to ensure that pertinent information gets to those people, is evidence of the importance of such access. The ability to be “around the table” and to know decision-makers directly is valuable.

Offering this opportunity only to Maori is prima facie a material disadvantage to non-Maori groups and discriminatory. It may be justified, in law, if there is persuasive evidence of a disadvantage to be balanced. LGNZ does not lead councils to consider that requirement.  

In interpreting the Act, and in applying BORA, the courts should also be influenced by the UN’s International Convention for the Elimination of All Forms of Racial Discrimination (“CERD”) which New Zealand ratified in 1972. CERD strongly discourages political discrimination on the grounds of race, but permits it if necessary to secure adequate advancement of certain racial or ethnic groups to ensure their human rights and fundamental freedoms. However they may not “lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.”

LGNZ has said nothing to indicate it sees its recommended measures as temporary, and to be ended when they have ceased to be necessary to ensure “equal enjoyment” of rights and freedoms.

In our opinion it is possible that some LGNZ recommended measures could be justified under s 5 of BORA. They might be needed by particular disadvantaged iwi or hapū, in relation, for example, to land from which they had been wrongly excluded for many years. It could be that RMA restrictions had prevented them from enjoying their Article 2 rights as they wished. Exhaustion of group resources from a long struggle could justify particular balancing measures, for Maori and non-Maori groups. However, we think such cases are likely to be rare. The onus to justify discrimination rests on the public authority, and the very limited guidance offered by LGNZ is no platform to meet that onus.

Some of the measures proposed by LGNZ would place councils in breach of the Bill of Rights as noted. And because of this breach, a court would be unlikely to read s 4 (the Treaty clause) of the Act as requiring councils to implement materially discriminatory measures. Though it is now arguable that s 4 may not be a complete statement of the ways in which councils must have regard to Treaty principles, s 6 of BORA and the law that gives influence to international treaties such as CERD, require s 4 of the Act to be interpreted in a manner that does not require or permit councils to enact measures that are discriminatory.

For completeness, s 19(2) of BORA exempts from the definition of discrimination measures taken in “good faith” “for the purpose of” (what is colloquially called) affirmative action. As described, the LGNZ measures are not stated to be intended to be for the purposes of affirmative action, but rather to respect the alleged historical “mandate” of mana whenua and the particular terms of the Treaty. In Coburn, the High Court held (when considering the analogous s 74 of the Human Rights Act 1993) that a measure had to be specifically designed for the purposes of providing affirmative action for it to qualify for the exemption. So the LGNZ measures are not saved by s 19(2). We mention this because there might be an argument that the voter engagement measures could be a form of “affirmative action”.

Aside from s 19 of BORA, the Human Rights Act 1993 (“the HRA”) contains some specific provisions which target particular forms of discrimination or “racial disharmony”. Only some of these apply to government bodies, but they apply in addition to s 19 of BORA. None of these provisions are relevant here — LGNZ’s guide does not meet the high standard required to “excite hostility” against an ethnic group, and the remaining provisions of the Human Rights Act address matters such as employment discrimination.

Are the limited obligations under the Act reflected in LGNZ Guide?

The guide goes well beyond what is required of councils under either the general law or the Act specifically. Without identifying which is which, it refers to obligations arising from law and “respectful practice”. The latter is not a legal concept. It should have no weight where it is in competition or conflict with legal obligations. Obligations include the NZ Bill of Rights and Human Rights Act obligations not to discriminate on the ground of race. Councillors exercise coercive powers of local government. They should take great care to avoid abusing those powers for discriminatory purposes. It appears to us that their collective organisation, LGNZ, is at the least casual about the risk of materially misleading councils and councillors on their duties.

The guide seems to treat “mandate” as some sort of “stakeholder plus” status for hapū or iwi, to give much greater weight to their views than those of other people councils represent and govern.  There is nothing in Treaty principles which supports the concept of hapū or iwi “mandate” as the term is used by LGNZ. In context the LGNZ guide appears to assert some kind of residual political power that flows from previous land occupancy, long after disposal of land. The nearest parallel in legal history might be to the residual privileges sometimes exercised by those who formerly had master/serf powers over their tenants, or who ruled in towns or villages where their ancestors had wielded feudal authority. LGNZ seems to feel their peculiar statements about historical governorship need no explanation.

The Treaty principle of “active protection” was to ensure the signatory parties could enjoy their Treaty rights. LGNZ may argue that their word “mandate” is a synonym for, or derived from the concept of rangatiratanga, or the practical expression of partnership. Recent political claims have advanced the view that rangatiratanga in the Treaty, or the partnership metaphor, does create rights to race privilege and permanent political inequality. If that is what LGNZ is implicitly adopting or endorsing, it is a radical or revolutionary position. Given the importance of the consequences, they should have explained their reasoning and offered guidance on the boundaries of the claims that might be made on the basis of the alleged ‘mandate’. Councillors should wait until the discrimination is expressly authorised or demanded by statute before acting on it. Until then it could constitute an improper form of discrimination, in breach of the law.

In our opinion there is no Treaty justification for the alleged mandate, even if it is treated as a synonym for or derivation of partnership. The Maori version of Te Tiriti guaranteed rangatiratanga. Some argue that it demands co-governance (or partnership in power). There is little current intellectual  interest in close parsing of the Treaty in English or Maori, but it is self-evident that rangatiratanga (a word invented by the missionary translators of the Treaty) could not mean chieftainship in the political sense, since it was expressly assured to all the people, not just rangatira. We think it is clear that describing a property owner as the chief of their land was a good metaphor to convey the character of the “full exclusive and undisturbed possession” of their property as stated in the English version of which the Maori version was a translation. Those rights of exclusive use, enjoyment and disposition distinguished property rights under English law, from the property concepts of most cultures and regimes. In most regimes property rights were routinely subject to the superior rights of authorities (political, religious, tribal or otherwise).  

We note, however, that Waitangi Tribunal reports and recent legislative and political statements give rangatiranga a significance that carries elements of political or governmental authority. We think that the precise boundaries of the powers now claimed by Maori, or perhaps more fairly described as being offered to iwi, will need authoritative definition by Parliament or senior courts in the near future. As explained further below, in our opinion it is wrong and potentially costly for councils to act in advance of such determination by Parliament or the courts.

Whatever rangatiratanga meant in 1840,the Crown maintains the right to govern. Though the Treaty can be used as an aid to interpretation of statute like the Act, it does not and cannot create legal obligations by itself unless enacted in legislation. As noted above, the trend in legislation has consistently been to require respect for Treaty principles and not the text of the Treaty itself. The Treaty itself is not an orthodox foundation for the “mandate” claim.

Perhaps more significantly, the measures suggested — such as co-design of policy papers — go beyond what we consider could plausibly be argued for on existing authority. There is no general duty of consultation on the Crown under Treaty principles. It was expressly negated by Cooke P in the Lands case. Even more so for councils such a general duty could be unworkable. It could delay decision-making and undermine the ability of councils to make decisions and to govern. Consultation is, however, a widely required statutory obligation of councils. It is possible that a court could find that for councils the proper relationship with Maori demands special consultation. Still, consultation is not negotiation. LGNZ says councils are required to do more than consult or negotiate – it suggests collaboration. In our opinion to subject democratic decision-making to collaboration requirements with parties beyond the discipline of democratic election is to subvert democracy.

In contrast, a court may hold that the duty of “active protection” might extend to actively taking steps to increase Maori engagement in the political process. In any event the Act specifically endorses such a role for councils. With such specific provisions in the Act we doubt that any general Treaty principle, if they apply to councils directly at all, would require action beyond what is laid out in legislation.

None of the relevant provisions in the Act require the measures proposed by LGNZ. Some of the measures suggested by LGNZ may be useful ways of complying with the Act’s requirements that councils turn their minds to how to maintain and improve engagement by Maori. But they are not mandatory, exhaustive or automatically justified. LGNZ should have explained that councils are not excused from determining whether there is a need, or from minimising any conflict with democratic governance principles.

If the guide had claimed only that it was articulating best practice, or that it was a model for councils that found there was a deficit in contribution by Maori (for example if there were disproportionately few who could reliably represent Maori interests and concerns) it might be less easy to criticise LGNZ for being misleading. But instead the guide contrives to tell all councils they must do things recommended as if they were obligations.

The LGNZ advice goes well beyond the legal obligations. It is unbalanced and wrong.  

Risk of creating expectations that cannot be satisfied

Introducing some specific assurances to iwi or hapū (such as an assurance they will be involved in formulating policy or consulted on particular decisions) risks creating a legitimate expectation. A person can be led to have a legitimate expectation of benefits or treatment that it may not be possible for a council to deliver. Maori parties could be lead to expect treatment that a council might find to be unlawful, if it conflicts with other duties to treat citizens equally, or to avoid decision-making by people with conflicts of interest, or with bias or pre-judgment. Legitimate expectations can be the basis of liabilities for non-delivery of benefits to which the person expecting otherwise has no legal rights. Legitimate expectation can be a basis for an application for judicial review. Any case turns on its own facts. A council might, for example take steps to lower expectations, or warn of a possible need to end an arrangement. But LGNZ does not warn of the risk and the need for precautions.  

The same risk could arise from the adoption of standing orders or codes of conduct that contain unwarranted assurances of third party participation (by persons not elected as councillors). For example, standing orders and codes may offer aspirational assurances to council staff.

Councils must have standing orders, and councillors must abide by those standing orders. Standing orders, once adopted, may only be changed by a super majority of 75 percent of councillors. They are also published and required to be published. Codes of conduct can be similarly difficult to amend.

As noted above, it is not clear whether LGNZ intends its “legal obligations” to be specifically formalised into standing orders or codes of conduct. We have assumed that, even if no assurances or practices of this kind are specifically recorded in these documents, LGNZ’s intention is for there to be at least a parallel process by which these obligations are formalised alongside standing orders or codes of conduct (for example, the joint memoranda or charters of understanding referred to above). We think the legitimate expectation analysis would not materially change if the unwarranted or problematic assurances are contained in documents other than standing orders or a code of conduct. Though they may be easier to correct.

CERD

We mentioned above that New Zealand is a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination (“Convention”). For reasons that are not clear, that Convention appears to have almost disappeared from current lawyer and government consciousness. We think that it may be seen by some of them as inconvenient, though it was the initiative that prompted the creation of what is now the anti-race-discrimination provisions of the Human Rights Act, and the office of what is now the Race Relations Commissioner. It would be interesting to test the current status and power of that Convention, in a challenge to any particularly egregious race preference or discrimination by a council. Especially a council that seems to be colluding with a powerful and entrenched iwi leadership group to defeat the will of the people in local democracy. The relative power of CERD might be tested in such proceedings against the power of the UN Declaration on the Rights of Indigenous Peoples.

International treaties and conventions are not directly enforceable in domestic law. They are an aid to the interpretation of statutes (notably BORA and the HRA). The Convention provides that States“ undertake to prohibit… racial discrimination in all its forms… and to guarantee the right of everyone… equality before the law”. One form of equality before the law includes political rights: “in particular the right to participate in elections… to take part in the Government as well as the conduct of public affairs at any level and to have equal access to public service”.

We have not found any discussion as to what “public service” means in this context,[1]but presumably if Maori have greater access to officials employed by councils (via co‑writing of policy papers, for example) that would undermine the principle of equal access to public service. Without more analysis, we see this as supportive of our conclusions above.

CONCLUSION

The LGNZ guide is premised on assertions about obligations councils are said to owe to Maori and recommends policies to increase the practical political or governmental influence of Maori (and/or local mana whenua) in ways denied to other citizens. These policies appear to be contemplated as sitting along side statutory requirements on councils to prepare codes of conduct and standing orders.

Some of the LGNZ advice is wrong in law. It is inconsistent with the express subordination to democratic norms in the Act of legal obligations imposed on councils by Parliament to meet Crown responsibilities under Treaty principles. It goes beyond those specific requirements in the Local Government Act 2002. We also consider that at least some of the measures proposed by LGNZ prima facie breach s 19 of the New Zealand Bill of Rights Act 1990.

We have highlighted the legitimate expectation risk to councils if they adopt LGNZ’s guidelines. If these measures become the norm (through widespread adoption on the basis of LGNZ’s guidance) the effect may be greater. And the cost (including to community relations) of returning to policies that are not discriminatory could get higher, the longer LGNZ’s misleading recommendations prevail.  

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For further information on this, please contact Director Stephen Franks.

BACKGROUND

This submission is offered to improve the prospects that the Bill will achieve its main purpose – that is to release some projects from the paralysis and vast waste of resources that are now customary features of “environmental’ consenting processes. It is a public interest submission and not on behalf of any Franks Ogilvie client or third party.

OVERVIEW

In the opinion of Franks Ogilvie the expectations of promoters of this Bill are likely to be frustrated by judicial review and other lawyer/objector interventions. The Bill has surprisingly weak protection against opportunistic use of tactical litigation.

We expect litigation to confound those trying to implement the Bill. That litigation will not need a genuine environmental protection purpose. It may not even need strong prospects of substantive success. Litigation will succeed (in frustrating Parliament’s purposes) if an interim order halts an approval process until a reasonably arguable case can be heard and decided. Court timetables and delays are now measured in years, not months.  Interlocutory skirmishing and appeals can add years to a process. Successive court challenges at various stages of a process could see a fast track become many years long.

The Bill does not effectively limit standing. Judicial review applications may be launched by opponents of the purposes of the Bill generally, and by opponents of particular projects under consideration.  

THE BILL NEEDS STRONG FORM PRIVATIVE CLAUSES

Franks Ogilvie recommends substantial strengthening of privative clauses. We recommend a range of ways to deter legal process abuses. Though targeted at opportunist and tactical use of litigation, they will be criticised for potentially restricting reasonable use of rights. Consultation, objection rights and judicial review have evolved to enhance the quality and integrity of decision-making.  Constraining them to reduce opportunistic abuses could be costly.  That may be a cost and risk justifiable in a law intended as an emergency interim measure. It may be an inevitable stage in securing reform of legal processes that have become monstrous.  

The risks from limiting recourse to the courts must be measured against the counterfactual. Current processes become lawyer hell for people who want consents. Courts have squandered trust in the real purposes of environmental consent requirements.  Court inability to reduce prohibitive costs for citizens, involuntary parties, and government, is perceived as indifference.

LAWYERS COULD SABOTAGE PARLIAMENT’S INTENTIONS

We submit that Parliament should take very seriously the possibility that some judges will indulge lawyers who set out to make a mockery of the new law.  Instead of interpreting ambiguities and exercising discretions to help the law achieve its obvious intent, some judges may do what was recently done to Three Strikes law, and to the Marine and Coastal Area Act. That is they may contrive to substitute their policy preferences, and their opinion on political commitments and decision-making, for the intentions of the statute.  

In our opinion there is a substantial risk that the Bill will be made ineffective, because it fails to respond to the prospect  that some judges will be affronted by the Bill’s intention to curtail lawyer power. The result could be that Courts will warm to arguments advanced for NIMBYs and inveterate opponents of economic development. Courts that may not share the priorities and concerns of the opponents or the architects of this interim reform may nevertheless feel morally justified in nobbling it. In so doing they will aid the lawyers, planners and other members of the class that currently has control of resource use decisions. The Bill contains too little to persuade the Courts against interpreting the law in ways that will preserve the revenue, power and influence of the lawyer/planner class.  

Courts have a rich menu of arguments, principles and precedents to justify accepting judicial review applications, and to issue interim orders freezing processes pending the determination of the cases. Were mind the committee that judicial review is available on grounds including:

- Improper purpose of a decision-maker, including fettered discretion

- Predetermination, bias or conflict of interest in a decision-maker

- Defect in following prescribed procedure

- Denial of natural justice

- Inadequacy of consultation

- Disappointing legitimate expectations

- Unreasonableness

- Inadequacy of explanation of reasoning

- Disproportionality

- Inconsistency

- Error of law

- Error of fact including failing to obtain or to consider relevant facts or giving wrong weights to factors

We do not offer provisions that should appear in the Bill to protect the intentions of Parliament.  It appears to us that the current state of the Bill might reflect deliberate decisions to leave the new law exposed to judicial intervention. Accordingly our submission is largely confined to drawing attention to some of the opportunities created by the Bill for judicial review applications. Franks Ogilvie would be happy to assist the Committee with drafting suggestions if the Committee made it clear that such additional work would be valued.  

ILLUSTRATIVE OPPORTUNITIES TO SEEK JUDICIAL REVIEW, DECLARATORYJUDGMENTS

Clause 6 does not:

- say whether it is exhaustive of Treaty rights and obligations. Under recent and radical court treatments of Treaty clauses, a court could and likely would hold that it could import into the Fast Track Approval Act and regulations any of the uncertainties and recently created by the courts in those cases.

- say whether customary rights are “recognised” under s 62(3) and s 62A(2) of the Marine and Coastal Area Act just because claimants have lodged a claim. The purpose section of that Act (set out in s 4)talks loosely of restoring recognition to customary interests and mana tukuiho, without being clear whether recognition needs a recognition order as defined in s 9 of that Act. It is pertinent that cl 13(2)(f) and cl 14(3)(k) of the Bill refer to applicant groups. Other provisions of those clauses are even more vague and permissive.  

Clause 13 contains no protection against court orders to halt or delay for insufficient compliance, if the required report is allegedly deficient. The matters which the report must include are so broad and indeterminate there will be ample scope to claim the omission of something in a report.

Clause 14 (2) and (3) are similarly exposed,with a wide range of issues to provide grounds for application for judicialreview

Clause 15 contains no protection against courtapplications alleging material deficiency in information, especially given thebreadth of cl 14 with which an application must comply

Clause 16 requires engagement and consultation.It has no over-ride for circumstances where engagement is obstructed orrejected or delayed, tactically. It does not deal with the possibility that theapplicant may not be able to find out who are “relevant iwi, hapu, and Treatysettlement entities”.  That could bebecause some settlement provisions deal with metaphysical rights and effects.The obligation to consult claimant groups may include people who have strongincentives to frustrate the applicant and no incentives to cooperate. Theclause has no special definition of consultation so court precedent definitionswill apply.  It has no discretion for thedecision-makers to waive compliance.

Clause 17 contains no protection againstjudicial review applications alleging insufficient information and othergrounds of review. Note that Clause 21 says that referral of a project must bedeclined if it does not meet the criteria of Clause 17. Clause 22 (3) issimilarly pertinent.

Clause 19(1)(g) effectively endorses theauthority of co-governance arrangements under Mana Whakahono a Rohe and jointmanagement agreements. Setting aside the absence of any principled explanationof how they satisfy the requirements of equality before the law, and theprotection of democratic control of the exercise of local government powers, clause19 could invite applications to the court to determine just what is required ofMinisters under their obligation to consider comments. A court may be asked todecide whether the clause demands respect for the rights of property owners(including the specific Maori property owners mentioned in clause 19) todetermine how they use and enjoy their land.

Clause 21(2) and (3) appear to grant adiscretion with the apparently permissive “may” decline. There could beattempts to cite context and the purposes of more specific clauses to limit thatdiscretion. In this regard, subsection (4) makes the question more pressing.

The obligation to give notice in clause 24 is so wide, and could apply to so many ‘sub-decisions’ of Ministers, that it could be difficult to ensure it is satisfied

The rigidity in Clause 25(4) invites judicial poring over all the records created in the process to establish whether there is  a deviation and if so, justification for it demonstrated by “analysis…in accordance with the relevant assessment criteria”. In this regard, the courts are likely to assert a strong version of the obligation to provide reasons for any decision.

Clause 26 looks like a conventional restriction of appeal rights, to questions of law. Given the range of ambiguities in theBill, the extraordinary range of considerations and closely specifiedprocedures and criteria, it should not be difficult to dress up a meritchallenge to a decision as a question of law. The Supreme Court has invented ‘environmental bottom lines’ not expressin existing legislation. Consent decision-makers are supposed to discern,define and apply them. Courts may determine that the prescribed decisioncriteria in this Bill must be rationalised and drawn together with similargolden threads of invention.

Under Clause 26, the limitation of standing toappeal may be more apparent than real. The number of parties invited to“provide comments” (subsection (1)(d)) should enable opponents with reasonable forwardplanning to find convenient plaintiffs to satisfy standing requirements.

SUMMARY ON VULNERABILITY TO LEGAL CHALLENGE

Our purpose in the preceding section is to show how easy it will be to find issues to take to judicial review.  Schedules 3 to 10 inclusive are equally susceptible to tactical litigation. Panel recommendations and reasoning are amenable to judicial review and could be the most likely target for court challenge. A Panel’s exercise of discretion is probably not entitled to as much deference as ministerial decisions. They may get some leeway based on ‘expert’ status.  But with 50% membership to represent local authority and iwi, it is not clear that the panels are truly expert. The appointment criteria offer little assurance of substantial environmental expertise.

The point of the above comment, and the preceding clause review is not to urge a more skeptical and precautionary refinement of the vulnerable provisions, though they could benefit from it. The comments instead illustrate the ways in which judicial review and appeals are likely to emerge. In our opinion even utmost care to draft the operative clauses defensively will not provide sufficient protection if the courts are sympathetic to applicants for judicial review.

If  the Bill is to achieve its purposes it needs a comprehensive set of privative clauses, deterrents to opportunistic and tactical litigation, and provisions requiring compensation for parties affected by the costs  of tactical (delaying) litigation.  

Judicial Review is supposed to require compensation from an applicant for the damage caused to a person seeking to implement a decision, by the delay from an interim order, if the applicant does not succeed at trial. That requirement is often not enforced in practice.

DETERRING TACTICAL LITIGATION

The following are not in order of priority or effectiveness. The Bill might:

- include powerful privative clauses and expressly limit judicial review so that it is directed to grave misuses of power, in distinction to matters of form, reasonableness or other inadequacy.  Recognised forms of privative provision  include: finality clauses, absolute discretion clauses; conclusive evidence clauses; lack of form (irrelevant) clauses; “as if enacted’” clauses; alternative remedy clauses (damages for example) and no suspension or delay clauses.

- Expressly address and exclude ways courts have negatedprivative clauses  including byinvoking  NZBORA;

- Provide decision-makers with express power to‘cure’ deficiencies in procedure and reports that clearly do not materiallyincrease the risk of significant adverse environmental impacts that will belong lasting (or similar words to distinguish impacts that can be remedied)

- Provide decision-makers with express safeharbour protection for substantial  orequivalent compliance;

- Determine the differences between consultation, engagement and comment;

- Expressly negate a judicial insertion of the precautionary principle or of other ‘bottom lines’ that do not allow for application of cost/benefit assessments that fully respect human needs;

- Provide for ex post remedy of deficiencies in notice and other procedural steps, unless those adversely affected can establish substantial environmental impact;

- Provide practical working definitions of undefined terms in Maori that might be used to activate court interest in novel law-making, and provide limits on how they might affect parties other than the Crown. This firm offered suggestions in submissions to the Environment Select Committee Inquiry on Seabed Mining regarding the EEZA.

- Declare that the purpose of the notice and consultation provisions is to ascertain potential unintended material effects that might otherwise be unknown to decision-makers,  including any adversely affecting their properties,  but otherwise they do not create natural justice obligations, or imply interests or rights to impede fast track consideration and implementation

- Include a provision declaring that the Bill references to Treaty obligations are exhaustive. This assumes that they will emerge better defined than in the current version;

- Beef up and make less discretionary the requirements for judicial review applicants whose cases prove to be not substantially meritorious, to compensate parties adversely affected by an interim order or other delay, and make more clear the kinds of loss that qualify for compensation;

- Better limit the import of considerations from other Acts where they are poorly defined (for example the EEZA and the MACA).

For further information on this Bill, please contact Stephen Franks

On 27 March 2023, the Government introduced the Severe Weather Emergency Recovery Legislation Bill. Its 'emergency' introduction has stunned lawyers. The First Reading debate in Hansard was not even available by the time Select Committee submissions closed, and these submissions were only open for one day.

The Bill shrieks of arbitrary power to constitutional lawyers. They are talking of Henry VIII clauses. What do they mean and why is there such outrage over a measure responding to cyclone devastation?

The Bill lets the Governor-General (who acts on Cabinet's request) grant exemptions from, modify or extend any provisions from a broad list of statutes. They include the Building Act, Land Transport Act, Local Government Act and Resource Management Act. Orders can also specify any provisions of additional Acts of Parliament that will in effect no longer bind a Minister on relevant matters. To exercise that latter power the Minister must be satisfied there is “unanimous or near unanimous support” from the leader of each political party in Parliament.

The Orders can only operate in a specified local authority that has been affected by the severe weather events.

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Henry VIII Clauses

Clause 7 of the Bill, which allows these Orders, is a contemporary Henry VIII clause. Henry VIII clauses delegate Parliament’s legislative powers.

Confining law-making to the people’s elected representatives was an enormous constitutional achievement. It removed the power to make up rules along the way from local big-wigs, priests, soldiers, officials and agents of the government. That legal inheritance distinguished the English Rule of Law from more despotic regimes.

Henry VIII clauses are “in disrespectful commemoration of that monarch’s tendency to absolution” (LawsLJ, Thoburn v Sunderland City Council [2002]4 All ER 156 at 157). The term refers to a 1539 law which permitted King Henry VIII to override Parliament by decree, which he used to declare some of his children illegitimate and to alter the line of succession. Taken with his abuse of legal procedure to dispose of unwanted spouses, the term is not a compliment.

So provisions in Acts that delegate what is effectively power to make up the law on the spot, to amend, override, or exempt from primary legislation, are very significant.

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What makes Henry VIII clauses so dangerous?

Over centuries Parliament has evolved accountability mechanisms. Consultation processes, general elections, and public scrutiny help to constrain what is otherwise an absolute power of a Parliament which is supreme, and without any constitutional body to over-ride it. Exercises of Henry VIII power sidestep those protections. At a local level they may authorise abuses of power which might not even get public attention.

New Zealand's experience of the cruel use of MIQ powers (which the courts have subsequently criticised), show the dangers of extraordinary power, even under statute. The Severe Weather Bill has no protections against favouritism or vendetta. It has no protections against jobs-worth high-handedness. It has no specific protection of property rights.

This Bill will allow discretionary authority outside of statute, and in spite of it.

Henry VIII clauses often contravene the doctrine of Separation of Powers. This doctrine tries to protect against arbitrary authority by confining each branch of government to its own sphere. Those that make the law should not be those who apply it. Law-makers should not be “judge and jury” in their own cause.  

These Henry VIII clauses violate this protection by allowing the executive government to step into the shoes of Parliament. Those exercising the powers are accountable to their bosses, but without law constraining them to make them accountable to the courts.

The Regulations Review Committee has indicated that while Henry VIII clauses are permissible in some circumstances, they should only be used where necessary. There should also be appropriate constraints on the use of their power. The Bill material does not show satisfaction of those requirements

The Bill fails to provide accountability

The Severe Weather Bill, as introduced, has feeble reassurances.

Orders made under clause 7 will expressly not be invalid where they confer any discretion on, or allow any matter to be determined or approved by any person (Clause 18). There is no prescribed limit to who can make decisions under fundamental legislation, nor how these acts may be interfered with.

The Bill proposes a bureaucratic comfort - a Severe Weather Events Recovery Review Panel. The responsible Minister must consider appointing to the SWERRP members with knowledge or experience in law, environmental protection, local Māori or community interests, or emergency response and recovery. The Minister must also consider appointing one or more persons with experience in “local perspectives in the severe weather events affected areas of mana whenua, mātauranga Māori, tikanga and te ao Māori.”

The appointees are selected by the Minister creating the Orders, and are not democratically accountable.

Orders made under the Bill can remain in force until 31 March 2028, if not revoked before. Many provisions of the Act self-repeal after three years. It seems the Panel would then no longer exist to review the use of the Orders.

Other legislation

The Bill might be the high water mark so far of government extension of executive power. It is not much more significant, however, than the aborted attempt to entrench co-governance in the Water Entities scheme.

The provisions for Te Mana o te Wai statements by iwi may have similar constitutional implications. Words in the provisions setting up co-governance get meanings set out in Minister’s National Policy Statements. They can change. The RMA replacement Bill is shot through with comparable derogations from normal rule of law certainty, and delegation of important legislative power to unelected committees.

For more information on this, please contact Director Stephen Franks.

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